| A customer slips and falls at the grocery store. A child falls off the monkey bars at a city park. A teenager is injured during gym class. The legal issue in each of these instances is the liability of the occupier for their visitors’ injuries. In Ontario, an occupier’s obligations are set out in the Occupiers’ Liability Act. In essence, an occupier of premises has a legal duty to those coming onto its premises to take reasonable care for their safety. Although the focus of this article in on the duty of commercial establishments, it is important to know that occupiers’ liability legislation applies equally to homeowners. The following is an overview of occupiers’ liability. Who is an occupier? An occupier is a person who • is in physical possession of premises, or • has responsibility for and control over the condition of the premises or the activities taking place, or • has control over the persons entering the premises. What is an occupier’s responsibility? An occupier owes a duty of care, as in all the circumstances of the case is reasonable, to see that visitors entering on the premises are reasonably safe while on the premises. This duty applies to risks caused by the condition of the premises as well as the activities carried out on the premises. What recourse does an injured visitor have against an occupier? A person, who is injured while on another’s property, may be entitled to recover monetary damages if it can be established that the occupier was liable for the damages that were sustained. In making this determination, a court will take a number of factors into account, including: • The inherent or unusual danger at the premises. • The reasonable likelihood of a particular incident occurring. • The sufficiency of the occupier’s program of care and maintenance. • The visitor’s willingness to assume a foreseeable risk. • The age and status of the visitor. • The nature and extent of any warnings or waivers of liability on the part of the occupier. • The sufficiency of the connection between the accident and the alleged breach by the occupier. When is an occupier not responsible? An occupier may not be responsible for damages suffered by persons on the premises if the occupier has restricted, modified or excluded its duty. However, the occupier is under an obligation to bring any restriction, modification or exclusion to the attention of its visitors. In addition, an occupier will not be responsible in respect of risks willingly assumed by visitors to the premises. We have chosen several court cases to help illustrate the obligations of an occupier, The School Gym Occupier - School Board Visitor - Student Facts - The 16-year old student suffered a dislocated elbow when he hit the floor after the protective mats separated during a wrestling match. The mats separating during wrestling exercises was not uncommon. The only precaution taken was a standing instruction to the non-participating students to sit around the perimeter of the mats with their feet pressed against the edges of the outside mats. Result - The student successfully sued the school board. Reasons - The judge concluded that the school board had failed to discharge the burden of proving that it had adopted the best safety precautions reasonably possible for the protection of students taking part in physical education courses. He found that the so-called perimeter system was a dangerous one when the wrestling reached the competitive stage, particularly since the separation of mats was foreseeable. The Municipal Tennis Court Occupier - Municipality leased court from local paper mill Visitor - Competitive Tennis Player Facts - The 33-year old tennis player suffered torn ligaments in his knee when, during a competitive tennis match, his toe got lodged in a crack on the court. The tennis player played on these particular courts regularly and was aware of the state of disrepair. The municipality inspected the courts each spring and was aware of the numerous cracks. It did not want to resurface the court before obtaining a Wintario grant. Result - The tennis player’s lawsuit was dismissed. Reasons - The tennis courts were dangerous premises keeping in mind the purpose for which they were constructed. The municipality had an obligation to provide facilities that could be used safely and it was insufficient for the municipality to simply make an on-site inspection in the spring. However, the tennis player was aware of the dangers and notwithstanding that knowledge, he chose to play anyway and therefore voluntarily incurred the risk. The Municipal Playground Occupier - Municipality Visitor - Child Facts - The two-year old child suffered a skull fracture when she fell from the playground structure. She hit her head on the concrete foundation used to anchor the structure. The municipality maintained a regular system of inspection and repair of equipment and parks. Result - The mother’s lawsuit on behalf of the child was dismissed. Reasons - The municipality’s inspection program with respect to parks and playgrounds was entirely reasonable. The existence of the concrete foundation was not hazardous in the circumstances or any more hazardous than the structure itself. Private Water Park Occupier - Popkum Water Slides Ltd. Visitor - Customer Facts - The 52-year old customer injured herself when she slipped on the wet walkway, separating two wading pools. Although the surface of the walkway was generally wet, ground walnut shell grit was sprinkled on the painted surface. This was a commonly used method of making what would otherwise be a slippery surface into a slip-resistant surface. Result - The customer’s lawsuit was dismissed. Reasons - The water park had taken sufficient steps to make the premises reasonably safe for pool users. Depending on where the injury occurs, the limitation period for commencing a legal action might be very short. Therefore if you have been injured while on another’s premises, it is important to promptly seek legal advice. |
 |
| Occupiers' Liability |
| THE LAW & YOUR PROPERTY |
| The Law & You offers general comments on legal matters of concern to business and individuals. The articles are not intended to provide legal advice or opinions. Readers should seek professional legal advice on the particular legal issues which concern them. ©2006 Kimberly Walsh, Cornwall, Ontario, Canada |